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196 U. S.

Argument for Plaintiffs in Error.

includes the power to absolutely prohibit this interstate traffic in them, Lottery Case, 188 U. S. 321. While this status continues and this authority of Congress may be exercised, the legislature of Iowa is as utterly powerless to regulate such transit and first disposition—if made before breaking of original package as it would be powerless to regulate affairs in Illinois or Nebraska, or any other adjacent or non-adjacent State.

Congress has not legislated in regard to trade in cigarettes and this silence means that the trade so far as it is interstate and under congressional control shall be free and unrestrained. Robbins v. Shelby Taxing District, 120 U. S. 489, 493.

These cigarettes were in packages prescribed by the internal revenue law and were original packages entitled to inimunity from state regulation. Washington v. Coovert, unreported, but see 164 U. S. 702; In re Minor, 69 Fed. Rep. 233; The McGregor Case, 76 Fed. Rep. 956. If a legislature may prohibit sale of cigarettes it may prohibit that of coffee. Tiedeman on Police Power, 2. Only where Congress abdicates its power may the States control a traffic as is the case in regard to liquor. 'Wilson Act construed in In re Rahrer, 140 U.S. 545; Gibbons v. Ogden, 9 Wheat. 1, 190. The state statute involved is void as it amounts to a denial of equal protection of the laws. The classification excepting jobbers and wholesalers doing an interstate business with customers outside the State is arbitrarily unequal and unjust. Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Cotting v. Stockyards Co., 183 U. S. 79, 112. Section 5007, Iowa Code, is also void as against the owner as a taking of property without due process of law in that it fixes a lien and a personal judgment without any sort of notice against the owner of the real estate in which the cigarettes are sold. McMillan v. Anderson, 95 U. S. 37, and Hagar v. Reclamation District, 111 U. S. 701, distinguished. A party leasing a building for building purposes has no knowledge that it may be used for a sale in violation of the statute. McBride v. State, 70 Mississippi, 516; as to what is due process of law,

Argument for Defendant in Error.

196 U.S.

see Low v. Kansas, 163 U. S. 81; Hurtado v. California, 110 U. S. 516.

Mr. F. E. Northup for defendant in error in this case and Mr. Henry Jayne for defendant in error in No. 150, argued simultaneously herewith.

Section 5007, Code of Iowa, is not void as an attempt to regulate interstate commerce.

Whatever article of commerce is recognized as fit for barter or sale, when its manufacture is made subject to Federal regulation and taxation, must be regarded as a legitimate article of commerce although it may be within the police power of the States. In re Rahrer, 140 U. S. 559; Brown v. Maryland, 12 Wheat. 419; Leisy v. Hardin, 135 U. S. 100; Austin v. Tennessee, 101 Tennessee 563. And if Congress authorizes its importation, no State can prohibit its introduction. License Cases, 5 How. 504.

A State, however, is not bound to furnish a market for such articles, or to abstain from passing any law which may be necessary or advisable to guard the health or morals of its citizens, although such law may discourage importations or diminish profits of the importer. Boston Beer Co. v. Kansus, 97 U. S. 25; Mugler v. Kansas, 123 U. S. 623; Foster v. Kansas, 112 U.S. 201.

Police power may be lawfully resorted to for the purpose of preserving public health, safety and morals; a large discrimination is necessarily vested in the legislature to determine what the public interests require and what measures are necessary for the protection of such interests. Cases supra and Holden v. Hardy, 169 U. S. 366, 392; Barbmeyer v. Iowa, 18. Wall. 129; Powell v. Pennsylvania, 127 U. S. 678; Plumley v. Massachusetts, 155 U. S. 161; Vanderbilt v. Adams, 7 Cow. (N. Y.) 349; Wilson v. Blackbird &c. Co., 2 Peters, 245; Sherlock v. Alling, 93 U. S. 99; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Mo. Pac. Ry. Co. v. Finley, 38 Kansas, 550;

1 See Hodge v. Muscatine County, post, p. 276.

196 U.S.

Argument for Defendant in Error.

Kimmish v. 'Ball

, 129 U. S. 217; Waterbury v. Newton, 50 N. J. L. 534.

A State cannot prohibit the sale of articles of lawful commerce, when imported, by the importer, when such articles do not become a part of the common mass of property within the State, and so long as they remain in the original packages in which they were imported. Leisy v. Hardin, 135 U. S. 100; Schollenberger v. Pennsylvania, 171 U. S. 1; Bowman v. Chicago &c. Ry. Co., 125 U. S. 465; State v. Winters, 25 Pac. Rep. 237; May v. New Orleans, 178 U. 8. 496. But the original package must be of such form and size as is so used by producers or shippers for the purpose of securing both convenience in handling and security in transportation of merchandise between dealers, in the ordinary course of actual commerce. Commonwealth v. Schollenberger, 156 Pa. St. 201; McGregor v. Cone, 104 Iowa, 465.

Where the mode of putting up a package is not adapted to meet the requirements of interstate commerce, but those of an unlawful domestic retail trade, the dealer will not be protected on the ground that he is selling an original package. Austin v. Tennessee, 101 Tennessee, 563; Commonwealth v. Bisham, 138 Pa. St. 639; Haley v. Nebraska, 42 Nebraska, 556; S. C., 60 N. W. Rep. 962; Commonwealth v. Fisherman, 128 U. S. 687; Commonwealth v. Paul, 170 Pa. St. 284; State v. Chapman, 47 N. W. Rep. 411. The size of the package is immaterial where bona fide transactions are carried on. 5 How. 608; Commonwealth v. Zelt, 138 Pa. St. 615; Austin v. Tennessee, 101 Tennessee, 563; S. C., 179 U. S. 343.

Section 3392, Rev. Stat., as to size of cigarette packages is for the purpose solely of taxation and the better enforcement of the internal revenue law.

The court must consider in determining this question that the transaction was not in good faith, and the packages were not shipped in the usual and ordinary manner and according to the customary usages of trade and commerce.

The act should not be held unconstitutional unless it is a

Argument for Defendant in Error.

196 U.S.

clear usurpation of prohibited power. Objections as to the policy of the act cannot be considered. People v. Jackson Co., 9 Michigan, 285; New Orleans G. L. Co. v. Louisiana L. & H. Co., 115 U. S. 650; Black on Const. Prohib. 8 62; Cases reported in 58 California, 635; 2 Iowa, 280; 13 Minnesota, 341, 349; 68 N. Y.381; 30 Iowa, 9; 61 Am. Dec. 338, n.; 6 Am. Ency. Law, 2d ed., 921, n.; 20 Iowa, 338; 22 Atl. Rep. 923; 33 Hun, 279; 80 Missouri, 678; 20 Florida, 522; 9 Indiana, 380; 15 Texas, 311; 74 Am. Dec. 522; 61 Am. Dec. 331 n.; 15 Iowa, 304; 2 Iowa, 165.

The statute is not unconstitutional as applying more than one subject or covering matters not within its scope. Duensing v. Roby, 142 Indiana, 168; Perry v. Gross, 41 N. W. Rep. 799; Larne v. Tiernan, 110 Illinois, 173. It is not unconstitutional because not uniform in operation between jobbers and wholesalers doing interstate business and citizens of the State. See original package cases cited supra; nor does it deprive any one of his property without due process of law. Smith v. Skow, 97 Iowa, 640; Hodge v. Muscatine County, 96 N.W.Rep. (Iowa) 969.

The power to tax is inherent in the Government. It is a legislative power and is limited only by constitutional pro visions, subject thereto, it extends to everything and everybody, as the legislature may see fit to apply it. Courts cannot control its exercise, unless such exercise conflicts with constitutional limitations. 25 Am. & Eng. Ency. Law, 18, and cases cited; Ferry v. Deneen, 82 N. W. Rep. (Iowa) 424; 27 Iowa, 28; 76 Illinois, 561; 52 Wisconsin, 53; Hagar v. Reclamation Dist., 111 U. S. 701.

The power to impose privilege and occupation taxes exists independently and concurrently in the state and Federal government, subject to constitutional restrictions. Being in the discretion of the legislature, it may select some for this purpose and exempt others, and select the mode in which taxes shall be levied. 25 Am. & Eng. Ency. Law, 21 n., 479, 481, 492; Ward v. Maryland, 12 Wall. 418; 5 How. 504; License Tax Cases, 5 Wall. 71; 69 Illinois, 80; U. S. Const. Art. I, 89,

196 U.S.

Argument for Defendant in Error.


par. 5; 60 Am. Dec. 581; 133 Massachusetts, 161; 62 Pa. St. 491; 89 Georgia, 639; 33 Fed. Rep. 121.

The demand made for money under the police power is secondary to the police regulation out of which the demand grows; while in the case of taxation the principal object is revenue. This distinction is not to be lost sight of, even though the procedure for collection may be similar in both

46 Michigan, 183; 46 Illinois, 392; Cooley on Taxation, 2d ed., '586; 11 Johns, 77; License Cases, 5 Wall. 462.

A tax imposed both for regulation and revenue is not for that reason invalid. Hodge v. Muscatine County, 96 N. W. Rep. 968; 2 Desty on Taxation, 1384.

An occupation charge is different from a general tax, and the constitutional provisions that all taxes shall be equal and uniform apply only to general taxation. It is sufficient if all in the same class are taxed alike. 49 California, 557; 102 Illinois, 560; 11 Ohio St. 449; 46 N. J. Eq. 270; 62 Pa. St. 491; 4 Texas, 137; 6 Wall. 606; 82 N. W. Rep. 424; 29 Wisconsin, 592; 84 Maine, 215; 81 Virginia, 473; 66 N. W. Rep. 893.

In passing upon the mulct liquor law the Supreme Court of Iowa held that such tax was a charge for carrying on the business and acted the same upon all persons and property coming within its provisions; that as the law was general in its scope and provisions, all persons liable thereunder must appear and pay the tax without notice, and that notice was “no more necessary to the property owner than in cases of taxes generally.” Re Smith, 73 N. W. Rep. 605; Smith v. Skow, 66 N. W. Rep. 893.

The tax is also a penalty and rules governing ordinary taxes do not govern. Ferry v. Deneen, 82 N. W. Rep. 424.

The meetings of the board of revision are fixed by law and of these all persons must take notice. Palmer v. McMahon, 133 U. S. 660; Glidden v. Harrington, 189 U. S. 255; Davidson v. New Orleans, 96 U. S. 97; McMillan v. Anderson, 95 U. S. 37.

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